Certain
persons may be appointed as ‘authorised persons’ under
various provisions of the Regulations. These
‘authorised persons’ may perform certain functions and
exercise certain powers including issuing an infringement notice
under Part 7 of the Regulations to a person who they reasonably
believe committed an infringement notice offence under a provision
of the Regulations that creates the offence.

Following a recent examination of the appointment of authorised
persons, it became apparent that the appointment of authorised
persons at a number of the specified airports has not been kept up
to date since 2004. In some cases, people who do not fall
within any of the categories of persons who may be appointed under
the relevant provisions of the Regulations have been purportedly
appointed as ‘authorised persons’. There were
other cases where, as the result of an administrative oversight, no
appointment at all was made, although it was intended for these
appointments to be made. The consequence of this is that
actions taken by such persons purportedly pursuant to the
Regulations, including issuing infringement notices, as far back as
2004, may be ineffective or invalid.

The Airports (On-Airport Activities
Administration) Validation Bill 2010 (the Bill) ensures the
effectiveness and validity of all actions performed and powers
exercised under the Regulations, including the issue of
infringement notices, before the commencement of this legislation
to the extent that they were performed or exercised by persons, not
appointed, or not validly appointed, as authorised persons under
any of the provisions of the Regulations.

The Bill gives these actions the same effect
as if the person who performed these actions had been, and had
always been, properly appointed as an authorised person. In
particular, the Bill ensures that persons who have paid the
administrative penalty specified in an infringement notice issued
by such a person for an alleged offence continue to enjoy the
immunity from prosecution and protection from liability for the
alleged offence that a payment in respect of an infringement notice
issued by a properly authorised person confers.

The Bill, however, does not affect rights or
liabilities arising between parties to proceedings heard and
finally determined by a court on or before the commencement of this
clause, to the extent that those rights or liabilities arose from,
or were affected by, an invalid or ineffective infringement
notice.

Financial impact statement

There will be no impact on Commonwealth
expenditure; therefore, a financial impact statement is not
required.

2

AIRPORTS (ON-AIRPORT ACTIVITIES
ADMINISTRATION) VALIDATION BILL 2010

NOTES ON CLAUSES

Clause 1: Short Title

1.
This provision specifies the short title of the Act.

Clause 2: Commencement

2.
Clause 2 specifies the commencement of the Act (that is, the day
this Act receives the Royal Assent).

Clause 3: Validation of issue of
infringement notices

3.
Clause 3 ensures the legal effectiveness at all times of a notice
purportedly issued, prior to the day on which this proposed clause
would commence, as an infringement notice for an infringement
notice offence under the Regulations to the extent that, apart from
this clause, the notice would not be valid or effective as an
infringement notice because either:

·
the notice was issued by a person who was not appointed, or was not
validly appointed, as an authorised person for the purpose of the
provision of the Regulations that creates the offence; or

·
a thing did not, or could not, happen as required by the
Regulations because the person was not appointed, or was not
validly appointed, as an authorised person. For example,
subregulation 149(2) provides that a copy of an infringement notice
served on the person to whom the notice is issued must show the
distinguishing number allotted to, or the signature and job
classification of, the authorised person who issued the notice.
A person who was never appointed or not validly appointed as
an authorised person would not have been able to sign such a notice
as an ‘authorised person’.

4.
Subclause (2) makes it clear that subject to subclause (3) the
notice is as valid and effective, and is taken always to have been
as valid and effective as an infringement notice, as it would have
been if the person who issued the notice was validly appointed as
an authorised person for the purpose of the provision concerned,
and the thing did happen.

5.
Clause 3 ensures that everyone is and was in the same position that
he or she would be in, or would have been in, had the notices been
issued by a properly appointed person.

6.
Accordingly, where a person has paid the amount specified in such a
notice as the administrative penalty for the alleged offence, there
will be no doubt that that person will continue to enjoy the
immunity from prosecution for the offence for which the purported
notice was issued, notwithstanding the flaw relating to the
appointment of the issuer of that notice.

7.
However, this clause does not affect rights or liabilities arising
between parties to proceedings heard and finally determined by a
court on or before the commencement of this clause, to the extent
that those rights or liabilities arose from, or were affected by, a
notice referred to in subclause (1).

3

Clause 4: Validation of other things
done

8.
In addition to having power to issue infringement notices,
authorised persons may perform certain actions and exercise certain
powers under certain provisions of the Regulations. For
example, under regulation 110 of the Regulations, an authorised
person for an airport may direct a driver of a vehicle used at the
airport in contravention of a parking control provision to move the
vehicle. Regulation 111 gives an authorised person the power
to move an abandoned vehicle if the vehicle is causing interference
with the normal flow of traffic at the airport or with the
operation of the airport. If a vehicle has been moved under
regulation 111 and the driver or owner of the vehicle is not found,
or if found has not recovered the vehicle within three months after
the day the vehicle was moved, the airport-operator company may
sell the vehicle after giving the appropriate notice.

9.
Clause 4 ensures that the purported performance of any function or
the purported exercise of any power of an authorised person under
any of these other provisions of the Regulations is valid and
effective. Clause 4 also ensures that to the extent that the
doing of the action or the exercise of the power would, apart from
this clause, be invalid or ineffective because the person was not
appointed, or was not validly appointed, as an authorised person
for the purpose of the provision, that action or exercise of power
is effective and valid.

10. Subclause (2) provides
that, subject to subclause (3), the thing done is as valid and
effective, and is taken always to have been as valid and effective,
as it would have been if the person who did it was validly
appointed as an authorised person for the purpose of the provision
concerned.

11. Subclause (3) provides
that proposed clause 4 does not affect rights or liabilities
arising between parties to proceedings heard and finally determined
by a court on or before the commencement of this clause, to the
extent that those rights or liabilities arose from, or were
affected by, a thing done by a person as described in subclause
(1).

Clause 5: Extended operation of clauses 3 and 4

12. This clause provides
that proposed clauses 3 and 4 apply in relation to a place that,
during a period that ended before the commencement of proposed
clause 5, was a Commonwealth place (as defined in the Airports
Act 1996 ), in the same way as they apply in relation to other
places.

13. An example of
such a place is the land which formerly constituted Hoxton Park
Airport. This land was a Commonwealth place until it was sold
by the Commonwealth in 2008. Various provisions of the Regulations
applied in relation to Hoxton Park Airport, while it was a
Commonwealth leased airport, prior to its sale. By virtue of
proposed clause 5, proposed clauses 3 and 4 have the same effect in
relation to actions taken purportedly under the Regulations in
respect of Hoxton Park Airport as they have in relation to other
Commonwealth leased airports to which the Regulations apply.

4

Clause 6: Compensation for acquisition of property

14. Subclause (1) provides
that if the operation of this Act would result in an acquisition of
property from a person otherwise than on just terms, the
Commonwealth is liable to pay a reasonable amount of compensation
to the person.

15. Subclause (2) provides
that if the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in a
court of competent jurisdiction for the recovery from the
Commonwealth of such reasonable amount of compensation as the court
determines.

16. Subclause (3) provides
that in this clause ‘acquisition of property’ has the
same meaning as in paragraph 51(xxxi) of the Constitution and that
‘just terms’ has the same meaning as in paragraph
51(xxxi) of the Constitution.